This portion of Homo Sacer is quite strange, so let’s try to put it in context. First, consider the idea of the social contract as an attempt to explain political legitimacy. The people give up some of their power to the government, and the government provides justice. Hence, we respect the law and follow it because we are all implicit signatories to a contract. Part of Agamben’s project appears to be to set up a competing account of the origins of politics. Instead of a contract between free individuals, politics arises when the a distinction between inside the law and outside the law appears. More precisely, it is when there is an apparent but not real distinction between them; when someone can be both inside the law and outside the law, Agamben (for etymological reasons) says they are in a relation of ban, or abandonment. We have seen that the sovereign is both inside and outside the law, because of their capacity to suspend the law. Like the Leviathan of the social contract, the sovereign has the right to kill, but they specifically have the right to kill the person who is both inside and outside the law: the homo sacer, or sacred man.
Second, while this is a work of political ontology which searches for the underlying concepts and possibilities, it is influenced by Carl Schmitt’s idea of political theology. In short, Schmitt says that political concepts are secularized theological concepts: “The metaphysical image that a definite epoch forges of the world has the same structure as what the world immediately understands to be appropriate as a form of its political organization. The determination of such an identity is the sociology of the concept of sovereignty.” This chapter of Homo Sacer introduces a key “metaphysical” image, that of the homo sacer, which for Agamben is a fundamental element of Western political power, despite having its origins in an obscure Roman legal text which seems to confuse political and religious issues.
1. Homo Sacer
Pompeius Festus, in On the Significance of Words, defines homo sacer, the sacred man, this way: “The sacred man is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this an, yet he who kills him will not be condemned for homicide; in the first tribunitarian law, in fact, it is noted that ‘if someone kills the one who is sacred according to the plebiscite, it will not be considered homicide.’ This is why it is customary for a bad or impure man to be called sacred.” It is easy to see the apparent contradiction: the person is sacred, but their death is unpunishable. Even stranger, the person whom anyone could kill could not be killed with any ritual practices (such as the apparently standard sprinkling of salted flour on the forehead of a sacrificial animal).
Modern interpretations of this passage fall along two lines. Some see this sacredness as a weakened and secularized residue of a time when religious law was not distinguished from penal law, in which death sentences were sacrifices to the gods. On the other hand, some think it is analogous to the ethnological idea of the taboo: honoured and damned, venerated and horrible. The first group cannot explain why sacred man cannot be sacrificed, and the second group cannot explain why anyone can kill him. The homo sacer is at the intersection of being able to be killed but not sacrificed: it is outside both human and divine law.
It looks like a limit concept of the Roman social order, and it cannot be explained from the perspective of either the human or the divine order of things. Still, it might help us understand the limits of those two realms. Instead of trying to turn the homo sacer into an example of some other legal category, Agamben is going to look at it as its own thing, its own political structure.
2. The Ambivalence of the Sacred
Interpretations of social phenomena, and especially the origin of sovereignty, have been limited by an idea that Agamben calls “the theory of the ambivalence of the sacred.” This idea first appeared in William Robertson Smith’s 19th century book Lectures on the Religion of the Semites, and he was the first to suggest that taboos were not merely a part of primitive societies; they were also relevant to modern societies. Smith said that there were two kinds of taboos for ancient Israelites: taboos concerning sacred things and taboos concerning uncleanness. Elsewhere, he lists a series of ambiguities surrounding taboos, such as pork, which he thought inhabited a no-man’s-land between unclean and sacred. Importantly, he also mentions the ban in this list. Smith says that sinners “were devoted to utter destruction.” The word devoted is important: the ban was a form of devotion to God, and the verb “to ban” has sometimes been rendered as “consecrate” or “devote”. However, Smith says that in the oldest “Hebrew times,” the ban not only involved the destruction of people, but also their property.
Agamben presents a short history of scholarship surrounding the ambiguity of the sacred; This theory of the ambivalence of the sacred spread throughout the social sciences, and Smith was widely cited. For example, in 1895, Wilhelm Max Wundt argued that the indistinction between the sacred and taboo was the key element of archaic societies, while more advanced societies distinguished them.
Twentieth century scholarship was a sort of psychologization of religious experience, and it culminates in the work of the mid-20th century theologian Rudolph Otto:
“Here, in a concept of the obscure and the impenetrable, a theology that had lost all experience of the revealed word celebrated its union with a philosophy that had abandoned all sobriety in the face of feeling. That the religious belongs entirely to the sphere of psychological emotion, that it essentially has to do with shivers and goose bumps—this is the triviality that the neologism ‘numinous’ had to dress up as science” (78).
The chapter continues to cite examples and different descriptions of this ambiguity of the sacred, either taboo and disgusting or devoted to God.
A long quote reads,
“An enigmatic archaic Roman legal figure that seems to embody contradictory traits and therefore had to be explained thus begins to resonate with the religious category of the sacred when this category irrevocably loses its significance and comes to assume contradictory meanings. Once placed in relation with the ethnographic concept of taboo, this ambivalence is then used—with perfect circularity—to explain the figure of homo sacer. There is a moment in the life of concepts when they lose their immediate intelligibility and can then, like all empty terms, be overburdened with contradictory meanings. For the religious phenomenon, this moment coincides with the point at which anthropology—for which the ambivalent terms mana, taboo, and sacer are absolutely central—was born at the end of the last century.” (80)
Assuming the truth of this ambivalence does not help us explain what homo sacer means. We need to separate the political from the religious, in order to properly see where they overlap.
3. Sacred Life
There are two elements to this structure: the unpunishability of killing and the exclusion from sacrifice. It is, in fact, a kind of double exception: it is an exception from the human order (the rule against killing) and an exception from the divine order (it cannot be given over to God). There is a close connection to the sovereign exception here: “Just as the law, in the sovereign exception, applies to the exceptional case in no longer applying and in withdrawing from it, so homo sacer belongs to God in the form of unsacrificeability and is included in the community in the form of being able to be killed. Life that cannot be sacrificed and yet may be killed is sacred life” (82).
What defines homo sacer is not the ambivalence of the sacred, but rather the kind of violence it is exposed to within the double exception. The killing of homo sacer is neither part of the human order nor the divine order; it is a kind of violence excluded from both. We have already found a kind of human action that only exists in a state of exception: the sovereign decision, which suspends law and captures life within that law. Agamben suggests a hypothesis about the connection between sovereignty and the sacred: the homo sacer is the figure of life under the sovereign ban; in fact the original one. The production of the homo sacer was the original constitution of sovereignty: “The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice, and sacred life—that is, life that may be killed but not sacrificed—is the life that has been captured in this sphere” (83).
This gives us an answer to the question of the first chapter, about what is “captured in” the sovereign ban: it is homo sacer.
There is an interpretive difficulty for me here: I thought that bare life and sacred life (homo sacer) were different things, but here, he identifies them: “If we give the name bare life or sacred life to the life that constitutes the first content of sovereign power, then we may also arrive at an answer to the Benjaminian query concerning ‘the origin of the dogma of the sacredness of life’” (83). The life caught in the sovereign ban is sacred life, and in this sense, the production of bare life is the basic activity of sovereign. “The sacredness of life, which is invoked today as an absolutely fundamental right in opposition to sovereign power, in fact originally expresses precisely both life’s subjection to a power over death and life’s irreparable exposure in the relation of abandonment” (83).
This is where the structural analogy between the sovereign exception and the sacred most obviously appears. They are the two extreme limits of any legal order, and correlate to one another: “the sovereign is the one with respect to whom all men are potentially [sacred lives], and homo sacer is the one with respect to whom all men act as sovereigns” (84).
The sovereign and the homo sacer are joined together in a figure that excepts itself both from human and divine law, from standard legal frameworks and from nature, and creates the first properly Western political space. This close connection between the sacred and the sovereign is not just a secularized residue of an originally religious political power, and not just an attempt to give secular power a theological foundation. Sacredness is the originary include of bare life in the juridical order, and the homo sacer is the originary political relation.
4. ‘Vitae Necisque Potestas’
In the History of Sexuality, Foucault says “For a long time, one of the characteristic privileges of sovereign power was the right to decide life and death.” This might sound trivial, but the first time this phrase “right over life and death” appears in the history of law is the Roman father’s power over his children. The latin word vita was basically a combination of zoe and bios, and only had a technical legal meaning in the context of a father’s power. So life originally appeared in Roman law as the counterpart of an ability to kill.
“This power is absolute and is understood to be neither the sanction of a crime nor the expression of the more general power that lies within the competence of the pater insofar as he is the head of the domus; this power follows immediately and solely from the father-son relation (in the instant in which the father recognizes the son in raising him from the ground, he acquires the power of life and death over him) (87-88).”
The father’s power should not be confused with the power to kill, which the father has in the context of an adulterous wife, or over a slave. Those powers are attached to the household, but the father’s power over the son seems attached to political power in general; “Not simple natural life, but life exposed to death (bare life or sacred life) is the originary political element” (88). The phrase “father of the people”, which is a common name for sovereign leaders, “thus once again acquires its originary, sinister meaning”: it is always attached to the capacity to kill.
What we can see here is that every male citizen who can participate in public life is always in a virtual state of being able to be killed, and is always in some way sacer with respect to his father. What was this bond between father and son, that could only be expressed by a power of death? The only answer is that this power of death is the inclusion of bare life in the juridico-political order. Male citizens had to pay for their participation in public life with an unconditional subjection to a power of death; life can only enter the city on the condition of the double exception of the homo sacer.
Classical politics was founded on the separation of the household and the public, but the homo sacer is the hinge upon each side is articulated, and the point at which they become indeterminate. “Neither political bios nor natural zoe, sacred life is the zone of indistinction in which zoe and bios constitute each other in including and excluding each other” (90).
“It has been rightly observed that the state is founded not as the expression of a social tie by as an untying that prohibits (Badiou. . .)” (90). This untying is not the untying of a preexisting tie (like a social contract). The tie itself is an untying or an exception, and it is this untying that captures life: it is the politicization of human life through a power of death. “The sovereign tie is more originary than the tie of positive rule or the tie of the social pact, but the sovereign tie is in truth only an untying. And what this untying implies and produces—bare life, which dwells in the no-man’s-land between the home and the city—is, from the point of view of sovereignty, the originary political element” (90).
Notes from Means Without Ends, “Form-of-Life”
“Form-of-Life” is an essay written several years before Agamben began the Homo Sacer project, but it appears to give a clue as to his endgame.
By form-of-life, he means a life that cannot be separated from its form, in which bare life cannot be isolated. A life that cannot be separated from its form is a life for which what is at stake in its way of living is living itself; everything it does answers to possibility rather than necessity. It is never beholden to brute facts. As such, it is political life.
He seems to contrast “political power” with community. Political power is founded on the separation of of bare life from forms of life. For example, in Roman law, life [vita] only appear as a legal category in the context of the father’s power of life and death over his children. Life originally appears in law as a power that threatens death. This continues into Hobbes: life in the state of nature is always threatened with death, but once this bare life is submitted to the Leviathan, only the sovereign threatens death.
Absolute power is not founded on political will, but on bare life. The state of exception, which the sovereign decides on, only appears when bare life is threatened; bare life is the source of exceptions and must always be included in politics.
Benjamin said the state of exception has become the norm, and this statement is still correct. This is not because emergency is the only form of political legitimacy; rather, it is because there is a division between naked life (the support for sovereignty) and empirically recognizable forms of life, like the journalist, the elderly, and the student.
Foucault’s thesis that “what is at stake today is life” is basically correct, but it is important to properly understand this transformation. Bare life is left unquestioned by contemporary debates concerning bioethics and biopolitics. For example, Paul Rabinow describes two models of life: the scientist with cancer who turns his body into a laboratory, and the scientist who, in the name of respecting life’s sacredness, maintains the antinomy between ethics and technoscience. Both models depend on an unthought concept of bare life. While bare life appears to be a scientific concept, in biology the terms “life” and “death” are basically meaningless; life is actually a secularized political concept.
Once, only the sovereign could extract bare life from forms of life under specific circumstances; now it happens daily through the medicalization of great swaths of life. Biological life, the secularized form of naked life, turns all forms of life into survival.
Any kind of political form-of-life is only thinkable starting from the dissolution of the bare life/form of life distinction, and hence the “exodus from any sovereignty” (8). Today, is a form-of-life, a life for which living is at stake in its own living, possible?
Agamben defines thought as the framework that constitutes forms of life as being inseparable from a form-of-life. He does not mean the exercise of an individual capacity, but rather an experience that takes the potential character—or, going by “On Potentiality”, its inexhaustible impotentiality—of life and human intelligence as its object. Thinking is not about being affected by any particular actualized thought, but to be affected by the pure power of thought itself. It is only if one is not totally and solely actualized, but rather existing as a potentiality (or impotentiality) can a form of life become a form-of-life, in which it is not possible to separate out naked life.
The experience of thought is always an experience of a common power. Community and power are connected because power is a potential, and every community has a potential character. If we were entirely actualized, exhausting our potentiality, we would have stable identifies but no community; only coincidences and empirical factions. We are only capable of community to the extent that something has remained potential.
That insistence on potential and community being connected is why modern political philosophy did not begin with Aristotle, but with Averroes and his thought of an intellect in common. It is also attached to Dante’s statement that man’s basic capacity is a potential to be intellectual, and this capacity can only be actualized in community. The Marxist idea of a “general intellect” only gets its meaning within the perspective of this experience. Thought is not a form of life among others in which social production articulates itself, but is the unitary power that constitutes forms of life as form-of-life. State sovereignty, which affirms itself by separating out bare life, is countered by this power that incessantly relinks life to its form, or prevents it from being separated in the first place. Thought is form-of-life, and anywhere this appears, in bodily processes or habit or theory, only there is there thought. Form-of-life leaves behind the distinction Man/Citizen, bare life clothed temporarily in rights, and this must become the centre of the politics to come.